Having deliberated in private on 16 March, 11
July and 12 December 2000,

Delivers the following judgment, which was adopted
on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 36887/97)
against Ireland lodged with the European Commission of Human Rights
(“the Commission”) under former Article 25 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the Convention”)
by an Irish national, Mr Paul Quinn (“the applicant”), on 6 March
1997.

2. The applicant, who had been granted legal aid,
was represented by Mr M. Farrell, a lawyer practising in Dublin. The
Irish Government (“the Government”) were represented successively
by their Agents, Ms E. Kilcullen, Mr R. Siev and Dr A. Connolly, all of
the Department of Foreign Affairs.

3. The applicant alleged that section 52 of the
Offences Against the State Act 1939 constituted a violation of the rights
guaranteed by Articles 6, 10 and 13 of the Convention.

4. On 1 July 1998 the Commission decided to communicate
to the Government the applicant’s complaints under Articles 6 and
10 of the Convention. The application was transmitted to the Court on
1 November 1998, when Protocol No. 11 to the Convention came into force
(Article 5 § 2 of Protocol No. 11).

5. The application was allocated to the Fourth
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1 of the Rules of
Court. Mr Hedigan, the judge elected in respect of Ireland, withdrew
from sitting in the case (Rule 28). The Government accordingly appointed
Ms Vajić, the judge elected in respect of Croatia, to sit in his place
(Article 27 § 2 of the Convention and Rule 29 § 1).

6. By a decision of 21 September 1999, the Court
declared admissible the applicant’s complaints under Articles 6 and
10 of the Convention.

7. The applicant and the Government each filed
observations on the merits (Rule 59 § 1). The Court decided, after consulting
the parties, that no hearing on the merits was required (Rule 59 § 2 in fine)
and the parties replied in writing to each other’s observations on
the merits.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. On 7 June 1996, at approximately 6.00 a.m.,
two detective police officers left Limerick city in an unmarked police
car escorting a post office van carrying significant sums of money on
its way to Adare village, Co. Limerick. When the two vehicles arrived
at the post office in Adare, the police car was rammed from behind by
a stolen vehicle and immediately surrounded by five heavily armed and
masked individuals dressed in paramilitary style uniforms. One of the
five opened fire at point blank range on the police officers. One of
those officers died instantly and the other was seriously wounded.

9. The police suspected a local unit of the Irish
Republican Army (an unlawful paramilitary organisation known as the
IRA) and the IRA later claimed responsibility for the murder. It was
also suspected by the police that, on the night prior to the attack
in Adare, the stolen vehicle together with all firearms and ammunition
used in the attempted robbery had been stored in a safe house in Patrickswell,
Co. Limerick.

As part of the investigation that followed, a
number of persons suspected of being members of the local unit of the
IRA were arrested and charged, including the applicant’s brother who
was charged with conspiracy to commit robbery (in relation to the Adare
incident), possession of ammunition and of membership of the IRA. A
total of 63 persons were arrested and asked to account for their movements
at particular times surrounding the attack, including the remaining
members of the applicant’s family except his two sisters. All of those
persons who were asked to account for their movements did so.

10. On 19 July 1996 at 9.30 a.m. the applicant,
who resided in the family home in Patrickswell, Co. Limerick, was arrested
under section 30 of the Offences Against the State Act 1939 ("the
1939 Act") on suspicion of being a member of the IRA contrary to
section 21 of the 1939 Act.

11. He was questioned on eight occasions during
two 24-hour consecutive periods of detention for which provision is
made under section 30 of the 1939 Act. While in detention, he saw his
solicitor on three occasions: between 11.12 a.m. and 11.36 a.m. on 19
July 1996 prior to his first interview with the police; between 5.54
p.m. and 6.27 p.m. on 19 July 1996 and between 1.28 p.m. and 2.00 p.m.
on 20 July 1996. That solicitor did not attend the applicant’s interviews
with the police.

12. At the beginning of the interviews, the applicant
was cautioned that he was not obliged to say anything, but that anything
he did say would be taken down in writing and could be given in evidence.
Many of the questions put to the applicant related to the attack in
Adare and to his alleged membership of the IRA. On several occasions
during those interviews he was also requested to account for his movements
during certain periods of time on 6 and 7 June 1996 immediately before,
during and after the incident in Adare. In being so requested, he was
informed by the questioning police officers that a failure to provide
this information would constitute an offence under section 52 of the
1939 Act for which the potential penalty was six months’ imprisonment.
The applicant was also informed, on certain occasions only, that the
initial caution given to him did not apply as he was obliged to respond
under section 52 of the 1939 Act.

13. The applicant denied any connection with the
events in Adare, indicated that he was in London when he heard the news
of the murder and otherwise refused to give an account of his movements
stating, on one occasion, that he had been advised by his solicitor
not to answer questions.

14. On 17 January 1997 he was charged, pursuant
to section 52 of the 1939 Act, on three counts of refusing to give an
account of his movements. On 15 May 1997 the District Court dismissed
one charge, he was convicted on the second charge (a section 52 request
made on 21 July 1996) and no ruling was made on the remaining charge.
The applicant was sentenced to six months’ imprisonment.

15. The applicant appealed against conviction
and sentence to the Circuit Court and was released on bail pending the
appeal. He appealed on the basis, inter alia, of an overlap in the times referred to in the charge
which was dismissed and the charge on which he was convicted. In early
October 1997 the Circuit Court rejected this part of his appeal. When
the Circuit Court sat on 20 January 1998 to hear the applicant’s submissions
on sentence, he withdrew that portion of the appeal which was then struck
out. The applicant was detained immediately to serve his prison sentence
and was released on 4 June 1998.

16. In February 1999 the applicant’s brother
pleaded guilty to the charge of conspiracy to commit robbery and the
remaining charges were not proceeded with. Four other men pleaded guilty
to the manslaughter of the detective police officer and the wounding
of his colleague in Adare, Co. Limerick.

II. RELEVANT DOMESTIC LAW

A. Pertinent Constitutional provisions

17. Article 38(1) of the Irish Constitution provides
that no person shall be tried on any criminal charge save in due course
of law. By Article 40, the State guarantees liberty for the exercise,
subject to public order and morality, of the right of citizens to express
freely their convictions and opinions.

B. The Offences Against the State Act 1939

18. The Offences Against the State Act 1939 (“the
1939 Act”) is described in its long (explanatory) title as an Act
to make provision for actions and conduct calculated to undermine public
order and the authority of the State and, for that purpose, to provide
for the punishment of persons guilty of offences against the State,
and to establish Special Criminal Courts.

19. Section 21 of the 1939 Act makes it an offence
to be a member of an unlawful organisation as defined in the Act.

20. Section 30 deals with the arrest and detention
of suspected persons and provides that a member of the police can arrest
and detain a person whom he suspects of having committed an offence
under the 1939 Act or an offence scheduled under Part V of the 1939
Act (the scheduled offences are mainly offences under the firearms and
explosive substances’ legislation). This power of arrest is a permanent
power so that it is not dependent on a section 35 proclamation (see
the following paragraph).

21. Section 35 of the 1939 Act provides that Part
V of that Act (which establishes the Special Criminal Courts and contains
section 52) is to come into force by means of a proclamation by the
Government made when the Government is satisfied that the ordinary courts
are inadequate to secure the effective administration of justice and
the preservation of public peace and order, and when the Government
therefore makes and publishes a proclamation to that effect. The proclamation
was made in 1972 and is still in force. Accordingly, section 52 of the
1939 Act has been in force since 1972 to date.

22. By section 36 of the 1939 Act the Government
may declare that a particular class or kind of offence is a scheduled
offence for the purpose of the 1939 Act and such offences are to be
tried by the Special Criminal Courts established under section 38 of
the 1939 Act.

23. Section 52 of the 1939 Act reads as follows:

“1. Whenever a person is detained in custody
under the provisions in that behalf contained in Part IV of this Act,
any member of the <police> may demand of such person, at any time
while he is so detained, a full account of such person’s movements
and actions during any specified period and all information in his possession
in relation to the commission or intended commission by another person
of any offence under any section or sub-section of this Act or any scheduled
offence.

2. If any person, of whom any such account or
information as is mentioned in the foregoing sub-section of this section
is demanded under that sub-section by a member of the <police>,
fails or refuses to give to such member such account or any such information
or gives to such member any account or information which is false or
misleading, he shall be guilty of an offence under this section and
shall be liable on summary conviction thereof to imprisonment for a
term not exceeding six months.”

24. Under the terms of the Good Friday Peace Agreement
of 10 April 1998, the Government committed to initiating a wide ranging
review of, inter alia, the 1939 Act with a view to reform and dispensing
with those elements of the 1939 Act which would no longer be required.
The Minister for Justice, Equality and Law reform has, with Government
approval, established a committee to examine all aspects of the Offences
Against the State Acts and to report to the Minister with recommendations
for reform. The Committee has commenced its work.

C. Relevant case-law

25. In the case of the People (Director of Public Prosecutions) v. McGowan (1979 IR 45)
the accused had been arrested under section 30 of the 1939 Act and had
made certain statements to the police. The defence argued that because
of the basis of his arrest (section 30), the existence of section 52
of the 1939 Act and even though no section 52 requests had actually
been made, the accused was bound under penalty to give an account of
his movements. Accordingly, the statements which had been made by him
were involuntary and not therefore admissible. The Court did not find
this argument persuasive since no section 52 requests had in fact been
made. It went to point out that, even if section 52 had been invoked
by the police, the defence submission was not well-founded because of
previous Irish case-law which had held that statements obtained in accordance
with Irish law, even a law which made it a criminal offence to refuse
to answer, were not inadmissible in any legal proceedings.

26. The Garda Siochana (police) Handbook contains
relevant legislation and commentaries and is published by the Incorporated
Law Society of Ireland in association with the Garda Siochana. The commentary
on section 52 of the 1939 Act in the sixth edition (1991) provides as
follows:

“The fact that the accused is bound under threat
of penalty to answer questions lawfully put under section 52 does not
render the resultant answers or statements inadmissible in evidence”

The judicial authority for that proposition was
noted in the handbook as being found in the above-cited McGowan case and the earlier Irish case-law approved in the McGowan
case.

27. In the case of Anthony Heaney and William McGuinness v. Ireland and the Attorney
General ([1994] 2 ILRM), two individuals had been sentenced to
six months’ imprisonment pursuant to section 52 of the 1939 Act for
failing to give an account of their movements. The High Court rejected
their challenge to the constitutionality of section 52, considering
that section 52 constituted a proportionate interference with those
persons’ right to silence guaranteed by Article 38 of the Constitution:
the objective was to assist police investigations into serious crimes
of a subversive nature involving the security of the State; the restrictions
were not considered arbitrary or irrational; and other legal protections
were available to persons in custody under section 30 of the 1939 Act
which minimised the risk of an accused wrongfully confessing to a crime
and safeguarded against the possible abuse of the powers provided by
section 52 of the 1939 Act.

Those protections were listed by the High Court:
the requirement that a police officer must have a bona fide suspicion prior to arrest; the obligatory informing
of the suspect of the offences under the 1939 Act and/or of the scheduled
offences of which he is suspected; the right to legal assistance when
reasonably requested; the right to medical assistance; the right of
access to court; the right to remain silent and to be told of that right;
the obligations to provide appropriate cautions to detainees and to
abstain from cross-examining a person in detention under section 30
of the 1939 Act and from unfair and oppressive questioning of such detainees;
and the conditions attaching to any extension of the length of detention
under section 30 of the 1939 Act.

The Supreme Court rejected the appeal (Anthony Heaney and William McGuinness v. Ireland and the Attorney
General [1996] IR 580). It noted that section 52 of the 1939
Act was silent on the question of the later use of statements made pursuant
to requests of the police under that section. While it noted that the
Court of Criminal Appeal had suggested in the above-cited McGowan case that information lawfully obtained under Section
52 might be later used in evidence, the Supreme Court expressly reserved
its position as to whether that view was correct or not.

The Supreme Court pointed out that the right
to silence was a corollary to the freedom of expression guaranteed by
Article 40 of the Constitution. The relevant assessment was, therefore,
to consider the proportionality of the restriction on the right to silence
in view of the public order exception to Article 40 of the Constitution.
It noted that the 1939 Act was aimed at actions and conduct calculated
to undermine public order and the authority of the State and that the
proclamation made under section 35 of the 1939 Act remained in force.

As to whether section 52 restricted the right
to silence more than was necessary in light of the disorder against
which the State was attempting to protect the public, the court noted
that an innocent person had nothing to fear from giving an account of
his or her movements even though such a person may wish, nevertheless,
to take a stand on grounds of principle and to assert his or her constitutional
rights. However, it considered that the entitlement of citizens to take
such a stand must yield to the right of the State to protect itself.
The entitlement of those, with something relevant to disclose concerning
the commission of a crime, to remain silent must be regarded as of an
even lesser order.

28. In the case of National Irish Bank Ltd (In the matter of National Irish Bank Ltd and the Companies Act 1990,
1999 1 ILRM 321, at 343) the Supreme Court found that a confession
of a bank official obtained by Inspectors as a result of the exercise
by them of their powers under Section 10 of the Companies Act 1990 would
not, in general, be admissible at a subsequent criminal trial of that
official unless, in any particular case, the trial judge was satisfied
that the confession was voluntary. The Supreme Court considered that
compelling a person to confess and then convicting that person on the
basis of the compelled confession would be contrary to Article 38 of
the Constitution. That court also found that any other evidence obtained
as a result of information provided under section 52 of the 1939 Act
would be admitted in evidence in a subsequent trial if the trial judge
considered, in all the circumstances, that it would be just and fair
to admit it.

THE LAW

i. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 2 OF THE CONVENTION

29. The applicant complained that section 52 of
the 1939 Act violated his rights to silence, against self-incrimination
and to be presumed innocent guaranteed by Article 6 §§ 1 and 2 of
the Convention. Article 6, in so far as is relevant, reads as follows:

“1. In the determination ... of any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
an independent and impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall
be presumed innocent until proved guilty according to law.”

A. The parties’ submissions

1. The Government’s submissions

30. The Government submitted, in the first place,
that the applicant’s complaints fell outside the scope of Article
6 §§ 1 and 2 of the Convention. He had, for reasons outlined by the
Government, a fair trial in respect of his conviction under section
52 of the 1939 Act. Since Article 6 provides protection of a procedural
nature for the determination of a criminal charge, the applicant could
not rely on Article 6 to challenge the offence under section 52 itself.
In addition, no proceedings were taken against him on charges of membership
of an illegal organisation so that he could not, in that respect, complain
of a violation of the procedural guarantees of Article 6 of the Convention.
The Government also disputed that the applicant could be considered
to have been “charged” within the meaning of Article 6 as interpreted
by the Serves judgment: the applicant had assumed wrongly that, when
he was questioned under section 52, a case existed against him which
the police sought to prove as in the Serves case. When questions were
put to the present applicant under section 52, no decision had been
taken to charge him with any particular crime.

31. Secondly, the Government pointed to substantial
safeguards which exist in order to minimise the risk that an individual
may wrongfully confess to a crime, which safeguards were listed by the
High Court in the above-cited Heaney and McGuinness case (see paragraph 27 above).

32. Thirdly, the Government maintained that section
52 of the 1939 Act was a reasonable and appropriate measure given that
that section did not provide for, or allow the use, in subsequent criminal
proceedings against an accused of information obtained involuntarily
from that person.

If there had been cases where information obtained
pursuant to section 52 had been later introduced in evidence against
the accused, the Government could not find any such case. They pointed
out that the statement of the Court of Criminal Appeal in the above-cited McGowan
case on which the applicant relied was obiter dictum since no section 52 requests had been made in
that case. In any event, the matter had been clarified for the future
by the Supreme Court in its judgment in the above-cited National Irish Bank Ltd case of January 1999. That court found
that compelling a person to confess and then convicting him on the basis
of the compelled confession would be contrary to Article 38 of the Constitution.
It also found that any other evidence obtained as a result of section
52 statements would be admitted in evidence in a subsequent trial only
if the trial judge considered, in all the circumstances, that it would
be just and fair to admit it.

33. Fourthly, the Government also considered that
section 52 of the 1939 Act was a proportionate response given the security
situation pertaining in the Irish State relating to Northern Ireland
and the consequent concerns to ensure the effective administration of
justice and to preserve public peace and order.

The Government maintained that, as it is legitimate
to impose sanctions in civil matters (such as, for example, taxation
matters) when a citizen does not divulge information, the power to obtain
information under threat of sanction is all the more necessary in criminal
matters where the information sought could be essential for the investigation
of serious and subversive crime. The Government recalled that the arrest
of the applicant took place in the context of police enquiries consequent
on the serious attack in Adare which had been established as having
been carried out by an IRA unit.

The Government emphasised that section 52 of
the 1939 Act remained in force only as long as a proclamation under
section 35 of the 1939 Act was in force. As such, section 52 was a part
of Irish law only as long as it was considered warranted by a subsisting
terrorist and security threat. The Government summarised the duration
and level of violence to the date of their observations and detailed
recent bombings and other atrocities, referred to a public statement
in December 1999 of the Continuity IRA (who are committed to continuing
an armed campaign) and outlined recent weapons, explosives and vehicle
bomb seizures. Consequently, they considered that the maintenance of
the section 35 proclamation continued to be necessary. This necessity
had been constantly reviewed, most recently in March 1998, when it was
decided to maintain the proclamation in force, the Government noting,
in this context, that the single worst atrocity of the entire period
of the proclamation occurred in August 1998 when 29 persons lost their
lives in a bombing in Omagh. The Government also referred to their commitment
as regards the Offences Against the State Acts in the Good Friday Peace
Agreement of 10 April 1998.

Moreover, the use of section 52 of the 1939 was
strictly limited to arrests and detention under section 30 of the 1939
Act and the circumstances in which section 30 of the 1939 Act came into
play were, in turn, strictly limited. The domestic courts were, in addition,
vigilant in ensuring that the arrest powers under section 30 were not
abused or used for improper purposes (The People (D.P.P.) v. Quilligan and O’Reilly 1986 IR 495 and
The State (Trimbole) v. the Governor of Mountjoy Prison 1985 IR 550).

34. Finally, the Government distinguished the
Saunders v. the United Kingdom judgment (of 17 December 1996, Reports of Judgments and Decisions 1996-VI, no. 24) on the
basis that the Court condemned the use at trial of evidence obtained
from the accused under compulsion but not the means by which that evidence
was initially obtained. They also distinguished the Funke v. France
judgment (25 February 1993, Series A no. 256-A), pointing out that Mr
Funke was subjected to a continuing sanction as long as he refused to
provide the requested information. The John Murray v. the United Kingdom
judgment (8 February 1996, Reports 1996-I no. 1) was also distinguished, the Government
emphasising that Mr Murray’s case related to the subsequent drawing
of negative inferences from that applicant’s silence during questioning
whereas proceedings had never been taken against the present applicant.
The Government considered the Serves v. France case (judgment of 20
October 1997, Reports 1997-VI, no. 53) to be similar to the present case
but, nevertheless, also distinguishable in that Mr Serves’ objection
was premature because he refused to take the oath as a witness rather
than being compelled to respond to questions.

2. The applicant’s submissions

35. The applicant, citing the above-cited John
Murray, Funke, Serves and Saunders’ judgments, argued that Article
6 applied to his complaints because, once he was arrested and questioned,
he was “charged” within the autonomous meaning of that term in Article
6. Moreover, and while he was not complaining about the procedural fairness
of the proceedings by which he was sentenced to six months’ imprisonment,
his rights to silence, against self-incrimination and to be presumed
innocent guaranteed by Article 6 §§ 1 and 2 of the Convention were
violated by his being obliged to spend time in prison for maintaining
his defence rights once he had been so “charged” within the meaning
of Article 6. If he was excluded from relying on the relevant Article
6 rights because he had not been “charged” under Irish law or because
he was not subsequently proceeded against on those “charges”, the
relevant guarantees of Article 6 would be rendered ineffective.

36. As to the Government’s suggestion that any
statements made by the applicant pursuant to the section 52 requests
would not have been later admissible in evidence against him, the applicant
argued that the judicial statements that existed prior to the National Irish Bank Ltd case indicated that such statements
would be admissible. He referred, in particular, to the above-cited
Court of Criminal Appeal case of McGowan as one of the most authoritative statements on the
point when, in July 1996, he was arrested and questioned. He further
referred to the comments of the Supreme Court in the above-cited Heaney and McGuinness
case on the McGowan case (also cited above). The applicant also pointed
to the sixth edition (1991) of the Garda Siochana Handbook which accepted
that such statements were admissible in evidence against their authors.

In addition, it was standard practice that police
notes of interviews of persons detained under section 30 of the 1939
Act were tendered in evidence when such persons were charged and tried,
which notes routinely included responses to section 52 requests for
information. Indeed, he noted that during his many interviews with the
police, the numerous section 52 requests were intermingled with ‘normal’
questioning so that it was impossible to know where the section 52 questioning
began and ended.

However, the applicant accepted that the National Irish
Bank Ltd case ruled out the use of section 52 statements in the
future unless they were shown to be voluntary. However, that case did
allow the admission of evidence obtained as a result or in consequence
of section 52 statements obtained.

37. The applicant further considered that the
Government had overstated the threat to national security at the time
of his arrest. He underlined the fact that the section 35 proclamation
had been in force since 1972 and, accordingly, had become a quasi-permanent
part of Irish law. Nevertheless, there had been a steady decline in
the pattern and level of violence since the early 1990s and he cited, inter alia,
statistics taken from a report of Ireland under the International Covenant
on Civil and Political Rights (1992-6).

He further pointed out that there was no provision
for regular independent reviews of the necessity for the continuance
of the section 35 proclamation and that no such review had ever been
carried out. The recently established review body to which the Government
referred was the first ever independent review of the Offences Against
the State Acts but the Government had given no indication as to when
it would complete its work.

38. Finally, and although no violation was found
in the Serves case, the applicant considered that there had been a violation
in his case: questions were put to him whereas the Court found that
Mr Serves’ refusal to take the oath, before he had been questioned,
was premature; the applicant was arrested for questioning by the police
about his involvement in suspected offences; and he was imprisoned,
as opposed to fined, for failing to answer questions. As to the Government’s
submission that the above-cited John Murray case implied that the right
to silence could be restricted in response to national security threats,
the applicant argued that inferences could be drawn in that case “in
situations which clearly called for an explanation” from the individual
in question: there were no circumstances which called for explanation
in his case. In fact, the Court stated in the John Murray case that
it was incompatible with Article 6 to base a conviction solely or mainly
on an accused’s silence whereas that was precisely what happened to
him.

B. The Court’s assessment

1. Applicability of Article 6 §§ 1 and
2 of the Convention

39. The Government argued that Article 6 could
not apply to the applicant’s complaints because he had not been charged
when the section 52 requests were put to him, because no proceedings
issued against him on charges of membership of the IRA and because he
had a fair hearing on the charge under section 52 of the 1939 Act. The
applicant considered that he had been “charged” within the meaning
of that term in Article 6 of the Convention and that he was entitled
to rely on Article 6 § 1 because he was convicted of a criminal offence
and sentenced to imprisonment for having defended his defence rights
guaranteed by Article 6.

40. The Court recalls its established case-law
to the effect that, although not specifically mentioned in Article 6
of the Convention, the right to silence and the right not to incriminate
oneself are generally recognised international standards which lie at
the heart of the notion of a fair procedure under Article 6.

Their rationale lies, inter alia, in the protection of the accused against improper
compulsion by the authorities, thereby contributing to the avoidance
of miscarriages of justice and to the fulfilment of the aims of Article
6. The right not to incriminate oneself, in particular, presupposes
that the prosecution in a criminal case seek to prove their case against
the accused without resort to evidence obtained through methods of coercion
or oppression in defiance of the will of the accused. In this
sense the right in question is closely linked to the presumption of
innocence contained in Article 6 § 2 of the Convention (the above-cited
Saunders judgment, § 68).

The right not to incriminate oneself is primarily
concerned, however, with respecting the will of an accused person to
remain silent. The Court would note, in this context, that the present
case does not concern a request, through the use of compulsory powers,
of material which had an existence independent of the will of the applicants
such as, documents or blood samples (also the above-cited Saunders judgment,
§ 69).

41. The Court observes that the applicant complained
under Article 6 of the Convention about having been punished through
the application of section 52 of the 1939 Act, for having invoked his
rights to silence, against self-incrimination and to be presumed innocent
during police questioning in the course of a serious criminal investigation.
It recalls that the autonomous meaning of the expression “charge”
in Article 6 § 1 of the Convention means that a person can be considered
to have been “charged” for the purposes of that Article when that
individual’s situation has been “substantially affected” (the
above-cited Serves judgment, § 42).

42. While the present applicant had not been formally
charged under domestic law on 19-21 October 1996 when the requests under
section 52 of the 1939 Act were made, the Court considers that he was,
at that point, “substantially affected” in the above sense, and
therefore “charged” for the purposes of Article 6 § 1, with membership
of the IRA contrary to the 1939 Act and with some involvement in the
attack in Adare on 7 June 1996.

The Government themselves pointed out that the
arrest of the applicant took place in the context of police enquiries
consequent on the serious attack in Adare which had been established
as having been carried out by the IRA. The applicant was expressly arrested
and detained under Section 30 of the 1939 Act on suspicion of being
a member of the IRA. Having been questioned by the police for 24 hours,
it was considered necessary to extend his detention for a further 24
hours during which he was further questioned. Numerous questions were
put to him about the Adare incident, the investigation of which had
led to the arrest and questioning of most of his family and to his brother
being formally charged with offences arising out of that incident. The
section 52 requests related to his movements immediately before, during
and after the time of the attack in Adare. Many other questions related
to his alleged membership of the IRA.

43. However, it is true that, while the applicant
may have been so “charged” within the meaning of Article 6 when
the section 52 requests were put to him, no criminal proceedings as
regards those charges were pursued against him (“substantive proceedings”).
It is also true that, in general, an individual in that position could
not claim to have been a victim of a violation of the procedural guarantees
of Article 6 of the Convention.

44. Nevertheless, the Court notes that this latter
principle has been refined in certain circumstances.

Article 6 § 2 has already been applied, and
violations of that provision found, in the Minelli and Sekanina cases
(Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62,
and Sekanina v. Austria judgment of 25 August 1993 Series A no. 266-A),
even though the relevant national courts concerned had, in the former
case, closed the proceedings because the limitation period had expired
and had, in the latter case, acquitted the applicant. The Court has
also found Article 6 § 2 to be applicable in respect of the public
comments of police officers suggestive of an accused’s guilt of charges
even though the proceedings on those charges were subsequently discontinued
(Allenet de Ribemont v. France judgment of 10 February 1995, Series
A no. 308, §§ 32-37). Moreover, while Mr Funke was convicted for not
supplying information to the customs’ authorities, the criminal proceedings
initially considered by those authorities as regards his financial dealings
with other countries were never actually initiated against him (see
the above-cited Funke judgment).

45. In the above-cited Allenet de Ribemont case,
the Court explained this refinement, pointing out that the Convention,
including Article 6 § 2, must be interpreted in such a way as to guarantee
rights which are practical and effective as opposed to theoretical and
illusory (§ 35 of that judgment). Applying this approach to the present
case, the Court notes that, if the applicant is unable to invoke Article
6, the lack of substantive proceedings against him would exclude any
consideration under Article 6 of his complaint that he had been, nevertheless,
already punished during earlier the criminal investigation for having
defended what he considered to be his rights guaranteed by Article 6
of the Convention.

46. In such circumstances, the Court finds that
the applicant can invoke Article 6 §§ 1 and 2 in respect of his conviction
and imprisonment pursuant to section 52 of the 1939 Act.

2. Compliance with Article 6 §§ 1 and
2 of the Convention

47. The Court accepts that the right to silence
and not to incriminate oneself guaranteed by Article 6 § 1 are not
absolute rights (the above-cited John Murray judgment, § 47).

48. However, it is also recalled that Mr Funke’s
criminal conviction for refusing to provide information requested by
customs’ authorities was considered to amount to a violation of Article
6 § 1. In that case, the Court noted that the customs’ authorities
had secured Mr Funke’s conviction in order to obtain certain documents
which they believed existed, although they were not certain of the fact.
Being unable or unwilling to procure them by some other means, the Court
found that the customs’ authorities attempted to compel Mr Funke himself
to provide the evidence of offences he had allegedly committed. The
special features of customs law were found insufficient by the Court
to justify such an infringement of the right of anyone charged with
a criminal offence, within the autonomous meaning of that expression
in Article 6, to remain silent and not to contribute to incriminating
himself (the above-cited Funke judgment, § 44).

In the John Murray judgment, the Court described
the Funke case, pointing out that the “degree of compulsion” which
had been applied through the initiation of criminal proceedings against
Mr Funke was found to have been incompatible with Article 6 because
“in effect, it destroyed the very essence of the privilege against
self-incrimination” (the above-cited John Murray judgment, § 49)

49. The Government distinguished the Funke case
from the present application on the basis of the sanctions imposed.
The Court does not find this argument persuasive. The nature of the
sanction inflicted on Mr Funke (accumulating fines) may have been different
from that imposed in the present case (a single prison sentence). However,
both cases concerned the threat and imposition of a criminal sanction
because the applicants failed to supply information to authorities investigating
the suspected commission of criminal offences by them.

50. However, the Government pointed out that section
52 of the 1939 Act should be considered against the background of the
numerous protections available to persons in the applicant’s position.

51. The Court notes that the High Court in the
above-cited Heaney and McGuinness case (see paragraph 27 above) considered
that such protections minimised the risk of an accused wrongfully confessing
to a crime and safeguarded against the possible abuse of the powers
provided by section 52 of the 1939 Act. Important as they are, the Court
is, however, of the view that such protections could only be relevant
to the present complaints if they could effectively and sufficiently
reduce the degree of compulsion imposed by section 52 of the 1939 Act
to the extent that the essence of the rights at issue would not be impaired
by that domestic provision. However, it is considered that the protections
referred to by the Government could not have had this effect. The application
of section 52 of the 1939 Act in an entirely lawful manner and in circumstances
which conformed with all of the safeguards referred to above, could
not alter the choice presented by section 52 of the 1939 Act: either
the information requested was provided by the applicant or he faced
potentially six months’ imprisonment.

52. The Government also maintained that section
52 of the 1939 Act was a reasonable measure given that a statement made
pursuant to that section was not later admissible in evidence against
its author and because any evidence obtained as a result of such a statement
could only be admitted if the trial judge considered it fair and equitable
to do so.

The applicants essentially considered that the
judicial statements made prior to the above-cited National Irish Bank Ltd judgment of January 1999 indicated
that such section 52 statements could be later admitted in evidence
against their author. While the latter case may have clarified this
question, it did not do so until January 1999 and, in any event, that
case also indicated that evidence obtained as a result or consequence
of section 52 statements could be introduced in evidence against the
authors of those statements. Moreover, the applicant pointed to the
conflicting cautions given to him many times during his numerous interviews
on 19-21 July 1996.

53. The Court considers that the legal position
as regards the admission into evidence of section 52 statements was
particularly uncertain in July 1996 when the applicant was questioned.
It notes that the text of section 52 of the 1939 Act is silent on this
point. It observes that the Government did not refer to any domestic
case-law prior to July 1996 which would have authoritatively excluded
the later admission into evidence against the applicant of any statements
made by him pursuant to those requests. Nor did the Government exclude
the possibility that, prior to July 1996, statements made pursuant to
section 52 had, in fact, been admitted in evidence against accused persons.
The Government’s position was rather that, in any event, the situation
had been clarified for the future by the January 1999 judgment in the National Irish
Bank Ltd case. This uncertainty about the domestic legal position
in July 1996 is underlined by the comments of the Supreme Court in the Heaney and McGuinness
case on the Court of Criminal Appeal judgment in the earlier McGowan case, the Supreme Court delivering its judgment in
the Heaney
and McGuinness case only days after the present applicant was
released from custody in July 1996 (see paragraphs 25-27 above).

In any event, the applicant was provided with
conflicting information in this respect by the questioning police officers
on numerous occasions on 19-21 October 1996. At the beginning of each
interview, the applicant was informed that he had the right to remain
silent. Nevertheless, when the section 52 requests were then made during
those interviews, he was effectively informed that, if he did not account
for his movements at particular times, he risked six months’ imprisonment.
The only reference during those interviews to the possible use of statements
made by the applicant in any later proceedings was to inform him that
anything he did say would be written down and might be used against
him. The fact that the applicant was also informed only on certain occasions
that the earlier caution ceased to apply once a section 52 request had
been made, could not have clarified matters. Moreover, the Court observes,
from the police notes of the interviews, that it would have been difficult
to discern during those interviews to which questions precisely the
section 52 requests related.

54. The presence of the applicant’s solicitor
could not, in such circumstances, have sufficiently remedied the situation.
Apart from the fact that that solicitor did not attend the applicant’s
interviews with the police, the position remained that the applicant
had to choose between, on the one hand, remaining silent, a criminal
conviction and potentially a six-month prison sentence and, on the other,
forfeiting his right to remain silent and providing information to police
officers investigating serious offences at a time when the applicant
was considered to have been “charged” with those offences and when
it was unclear whether, in domestic law, any section 52 statements made
by him would have been later admissible or not in evidence against him.

55. Given this uncertainty, the position in July
1996 as regards the later admission into evidence of section 52 statements
could not have, in the Court’s view, contributed to restoring the
essence of the present applicant’s rights to silence and against self-incrimination
guaranteed by Article 6 of the Convention.

The Court is not, therefore, called upon in the
present case to consider the impact on the rights to silence or against
self-incrimination of the direct or indirect use made in later proceedings
against an accused of statements made pursuant to section 52 of the
1939 Act.

56. Accordingly, the Court finds that the “degree
of compulsion”, imposed on the applicant by the application of section
52 of the 1939 Act with a view to compelling him to provide information
relating to charges against him under that Act, in effect, destroyed
the very essence of his privilege against self-incrimination and his
right to remain silent.

57. The Government contended that section 52 of
the 1939 Act is, nevertheless, a proportionate response to the subsisting
terrorist and security threat given the need to ensure the proper administration
of justice and the maintenance of public order and peace.

58. The Court has taken judicial notice of the
security and public order concerns detailed by the Government.

However, it recalls that in the Saunders case
(at § 74) the Court found that the argument of the United Kingdom Government
that the complexity of corporate fraud and the vital public interest
in the investigation of such fraud and the punishment of those responsible
could not justify such a marked departure in that case from one of the
basic principles of a fair procedure. It considered that the general
requirements of fairness contained in Article 6, including the right
not to incriminate oneself, “apply to criminal proceedings in respect
of all types of criminal offences without distinction from the most
simple to the most complex”. It concluded that the public interest
could not be invoked to justify the use of answers compulsorily obtained
in a non-judicial investigation to incriminate the accused during the
trial proceedings.

Moreover, the Court also recalls that the Brogan
case (Brogan and Others v. the United Kingdom judgment of 29 November
1988, Series A no. 145-B) concerned the arrest and detention, by virtue
of powers granted under special legislation, of persons suspected of
involvement in terrorism in Northern Ireland. The United Kingdom Government
had relied on the special security context of Northern Ireland to justify
the length of the impugned detention periods under Article 5 § 3. The
Court found that even the shortest periods of detention at issue in
that case would have entailed consequences impairing the very essence
of the relevant right protected by Article 5 § 3. It concluded that
the fact that the arrest and detention of the applicants were inspired
by the legitimate aim of protecting the community as a whole from terrorism
was not, on its own, sufficient to ensure compliance with the specific
requirements of Article 5 § 3 of the Convention.

59. The Court, accordingly, finds that the security
and public order concerns of the Government cannot justify a provision
which extinguishes the very essence of the applicant’s rights to silence
and against self incrimination guaranteed by Article 6 § 1 of the Convention.

60. It concludes therefore that there has been
a violation of the applicant’s right to silence and of his privilege
against self-incrimination guaranteed by Article 6 § 1 of the Convention.

Moreover, given the close link, in this context,
between those rights guaranteed by Article 6 § 1 and the presumption
of innocence guaranteed by Article 6 § 2 of the Convention (see paragraph
40 above), the Court also concludes that there has been a violation
of the latter provision.

iI. ALLEGED VIOLATION OF ARTICLE
10 OF THE CONVENTION

61. The applicant also complained that section
52 of the 1939 Act constituted a violation of the rights guaranteed
by Article 10 of the Convention, which Article, in so far as relevant,
reads as follows:

“1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
...

2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder
or crime, ... for the protection of the ... rights of others...”

62. The Government submitted that any interference
with the applicant’s rights under Article 10 was in accordance with
the law and proportionate to legitimate aims pursued, given the margin
of appreciation afforded to the State in such cases. They repeated their
submissions under Article 6 about the threat to national security, pointed
out that the operation of section 52 was strictly limited and recalled
that the arrest of the applicant took place in the context of police
enquiries into an atrocity by subversives.

The applicant referred to the correlative right
not to speak or to furnish information guaranteed by Article 10. He
relied on the K. v. Austria case (judgment of 2 June 1993, Series A
no. 255-B, application no. 16007/90 Commission Report of 13 October
1992), noting that the Commission held that the prosecution and conviction
of that applicant constituted a violation of the right not to impart
information guaranteed by Article 10 of the Convention. Referring to
his submissions made under Article 6, he maintained that his conviction
and sentencing under section 52 of the 1939 Act constituted a disproportionate
interference with his rights under Article 10 of the Convention.

63. The Court considers that the essential issue
raised by the applicant was the compulsion imposed by section 52 of
the 1939 Act to respond to the questions of police officers investigating
the commission of serious criminal offences, a matter considered above
by the Court under Article 6 of the Convention. It does not consider
therefore that the applicant’s complaints under Article 10 of the
Convention give rise to any separate issue.

III. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

64. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Damage

65. The applicant did not claim that he had suffered
any pecuniary damage. In so far as the submission that his criminal
conviction would create difficulties in seeking work and a visa to the
United States could be considered in this context, the Court notes that
he has not produced any evidence whatsoever of any applications for
or refusals of work or of such a visa.

66. The applicant claimed compensation, however,
for non-pecuniary loss. He pointed out that, as a direct result of section
52 of the 1939 Act, he was convicted of a criminal offence and served
a substantial term of imprisonment (from 20 January to 4 June 998).

He therefore claimed IR£50,000 (Irish pounds)
for all the trauma and distress of his trial, conviction and imprisonment
pursuant to section 52 of the 1939 Act. He pointed out that his imprisonment
cut him off from his family and friends and denied him access to his
normal social and recreational activities. He further claimed an unspecified
sum for the damage to his reputation as a result of his trial and conviction,
particularly felt by the applicant in the Limerick area where his arrest,
detention, questioning, trial and conviction took place.

67. The Government accepted that, in the event
of the Court finding a violation, it was reasonable to assume that the
applicant suffered some distress and discomfort as a result of his imprisonment.
However, the Government requested the Court to take into account the
fact that the section 52 requests were put to the applicant in the context
of a police investigation into the attack in Adare where one police
officer had been shot dead and another seriously wounded. They also
considered relevant that the applicant did not substantiate his pecuniary
damages claims. They suggested a lesser sum as the Court considered
equitable.

The Government also maintained that the applicant
had not suffered any damage to his reputation as a result of his conviction:
they recalled that many other members of the applicant’s family were
also arrested and questioned in relation to the Adare incident and pointed
out that the applicant had adduced no evidence to show how, because
of his conviction, he was held in less public esteem in the circles
in which he moved. Alternatively, should the Court take the view that
the applicant nevertheless suffered some loss of reputation, the finding
of a violation, or any award made under the heading of personal trauma
and distress, would suffice.

68. The Court observes that, as a direct consequence
of the violation found in this case, the applicant was convicted of
a criminal offence and spent from 20 January to 4 June 1998 in prison.
It notes that the applicant has not attempted in any way to detail or
substantiate the alleged impairment of reputation to which he referred,
although it accepts that, as a result of his criminal conviction and
imprisonment, the applicant experienced certain inconvenience, anxiety
and distress.

The Court concludes that the applicant suffered
non-pecuniary damage for which a finding of a violation does not afford
just satisfaction. Making its assessment on a equitable basis, it awards
the applicant IR£4,000 in compensation for non-pecuniary damage.

B. Costs and expenses

69. The applicant claimed IR£605 (inclusive of
value-added tax - “VAT”) for the costs of the domestic proceedings.
As to the Convention proceedings, he claimed IR£39.20 for obtaining
domestic court documents, IR£2000 in respect of counsel’s fees
(it not being specified whether this was exclusive or inclusive of VAT
and no voucher being submitted), IR£8394.38 as regards solicitors’
fees (inclusive of VAT) together with IR£302.50 (inclusive of VAT)
in respect of outlay. The applicant expressly claimed a total
amount of IR£11,813.58. The Government accepted that, subject to certain
items in the applicant’s bill of costs being properly vouched (including
counsel’s fees), those fees were reasonable. However, they pointed
out that the total of the separate figures claimed was IR£11,341.08
and not IR£11,813.08 as claimed by the applicant.

70. The Court recalls that only legal costs and
expenses found to have been actually and necessarily incurred and which
are reasonable as to quantum are recoverable under Article 41 of the
Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25.3.99, § 79).

As to the voucher for counsel’s fees to which
the Government refer, the Court considers the work completed by counsel
for the Convention proceedings to be evident from the detailed bill
of costs submitted by the applicant’s solicitor and it notes that
the Government did not, in principle, contest the amount claimed in
respect of counsel. However, given the failure to indicate whether that
amount was inclusive of VAT or not and the absence of the relevant voucher,
the Court awards the applicant the amount claimed in this respect, IR£2000,
but as a figure inclusive of VAT. The discrepancy, highlighted by the
Government, between the individual and total figures claimed has also
been noted by the Court.

71. Having regard to the foregoing, the Court
awards to the applicant the separate amounts claimed, with counsel’s
fee being awarded at IR£2000 inclusive of VAT. The applicant’s award,
in respect of his domestic and Strasbourg legal costs and expenses,
amounts therefore to IR£11,341.08 (which figure is inclusive of any
VAT that may be chargeable) less the amount of legal aid paid by this
Court to the applicants in the sum of 5000 FRF.

C. Default interest

72. According to the information available to
the Court, the statutory rate of interest applicable in Ireland at the
date of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 §§ 1 and
2 of the Convention;

2. Holds that no separate issue arises under Article 10 of the
Convention;

3. Holds

(a) that the respondent State is to pay,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention:

(ii) a total
of IR£11,341.08 (eleven thousand three hundred and forty-one Irish
pounds and eight pence) to the applicant for the costs and expenses
of the domestic and Strasbourg proceedings (inclusive of any value-added
tax that may be chargeable) less 5,000FRF (five thousand French francs)
paid by this Court in legal aid;

(b) that simple interest at an annual rate
of 8% shall be payable from the expiry of the above-mentioned three
months until settlement;

4. Dismisses
the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing
on 21 December 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.